An Emerging Geopolitics of Illegal Immigration in the European Union

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An emerging geopolitics of illegal immigration in the European Union Paper prepared for the European Journal of Migration and Law Dr. Michael Samers School of Geography University Park University of Nottingham Nottingham NG7 2RD UK Tel: 0115 8466143 e-mail: [email protected]

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Few academic studies have explored comprehensively European policy developments with respect to ‘illegal’ immigration since the Treaty of Amsterdam, preferring to focus on legally resident Third Country Nationals instead (for exceptions, see Cholewinski, 2000, 2003; and Mitsilegas, 2002). This paper seeks to redress this lacuna and outlines a new geopolitics of (‘illegal’) immigration that concerns both a rescaling of decision-making (often referred to as ‘communatarisation’ which has been discussed extensively in terms of legal immigration), and a little explored re-scaling of control to third countries.

Transcript of An Emerging Geopolitics of Illegal Immigration in the European Union

Page 1: An Emerging Geopolitics of Illegal Immigration in the European Union

An emerging geopolitics of illegal immigration in the European Union

Paper prepared for the European Journal of Migration and Law

Dr. Michael Samers School of Geography

University Park University of Nottingham

Nottingham NG7 2RD UK

Tel: 0115 8466143 e-mail: [email protected]

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Introduction

There is now a wide and ample literature which has explored the relationship

between a racialised, ethnicised and xenophobic construction of ‘Europeaness’, an

emphasis on security, the absence of proactive human rights legislation, and the

development of restrictive immigration policies in Europe (e.g. Balibar and Wallerstein,

1991; Cholewinski, 2003; Huysmans, 2000; Karyotis, 2003; Kostakopolou, 2000;

Tesfahuny, 1998).1 While these critical analyses are absolutely essential as an antidote to

current EU policies, few academic studies have explored comprehensively European

policy developments with respect to ‘illegal’ immigration2 since the Treaty of Amsterdam,

preferring to focus on legally resident Third Country Nationals instead (for exceptions,

see Cholewinski, 2000, 2003; and Mitsilegas, 2002).3 This paper seeks to redress this

lacuna and outlines a new geopolitics of (‘illegal’) immigration that concerns both a re-

scaling of decision-making (often referred to as ‘communatarisation’ which has been

discussed extensively in terms of legal immigration), and a little explored re-scaling of

control to third countries.4

In both cases, the evidence of ‘securitarianism’ is strong. As Cholewinski (2003)

points out, overall, the bulk of legally-binding measures and ‘soft law’ that has emerged

since 1999 has neglected human rights and is mainly concerned with preventing migrants

without the necessary documents from entering the EU or facilitating their return or

expulsion if they do. Thus, the aim is certainly not to deny this securitarian emphasis – I

even reinforce it. Yet, by drawing on some familiar concepts within the migration

literature, and a theory of political economy from economic anthropology, I present a

new conceptual frame for situating this securitarianism. Specifically, I deploy a set of

1 In this paper, I shall use immigration and migration interchangeably, except where noted. In the latter case, immigration will refer to temporary or more permanent settlement while migration shall denote movements or intentions to move across international boundaries. 2 I use the term illegal between quotation marks because first, of the aversion to the term illegal by many immigrants themselves. Second, because of the claim by critical legal scholars that it is impossible to be illegal, in the sense that if an individual falls foul of national law, that individual becomes a subject of international law. Third, in the US, the term ‘undocumented’ is often used to denote illegal migrants, but this has a precise meaning in EU policy. That is, it refers to those illegal migrants who are without the necessary documents, and this has specific consequences for individuals, especially in terms of potential deportation (for a similar discussion, see Black, 2003). However, for the purposes of simplicity, I will cease to use quotation marks around the term illegal after this introduction. 3Apap, de Bruycker, and Schmitter (2000) discuss regularisation programmes across EU member states, but there is little discussion of EU-level developments. 4 For one exception, see Peers (2003).

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processes that I shall call the ‘three Vs’: ‘virtualism’, ‘venue-shopping’, and ‘(very) remote

control’, in order to understand this emerging geo-politics.

This paper is divided into three parts. The first part of this paper explores the

three Vs. I maintain that these three processes have shaped policy-making within the two

types of re-scaling alluded to above. I follow in the second section with a selective

account of policy developments in the realm of ‘illegal’ immigration, especially since the

2001 Laeken European Council. It charts the gradual communatarisation of the control

of illegal immigration (that is, the re-scaling of decision-making), while the third part

examines the re-scaling of control to third countries.

Theoretical considerations: the nature of illegal immigration and the three Vs

The nature of illegal immigration

Illegal immigration as an analytical category is somewhat odd because ultimately

it is an epiphenomenon of migration and citizenship policy. Or as many observers argue,

illegal immigration is produced. There can be no illegal immigration without immigration

policy, and thus those who are deemed to be ‘illegal’, ‘irregular’, ‘sans papiers’ or

‘undocumented’ shifts with the nature of immigration policy (Black, 2003; Cohen, 2003;

Samers, 2003). Consequently, illegal immigration has two characteristics: it is intimately

connected with the policies of legal migration and citizenship more generally, but

precisely because of its epiphenomenal character, it also becomes an explicitly juridical

and police matter. But the latter itself assumes two forms: prevention of entry and

regulation of settlement.

In this respect, there is considerable conflation within the popular press (if not

academic accounts and actual policy) of the various types of ‘illegality’ (e.g. Huysmans,

2000). There are those who ‘overstay’, those who have ‘lost’ their documents, those who

falsify their documents, those who enter a national territory clandestinely, rejected

asylum-seekers, and more generally, the socio-legal ‘grey area’ between illegal status and

asylum-seeking status. These distinctions and the fact that illegal immigration is

produced, implies that member states and EU-level institutions are attempting to halt a

phenomenon that they themselves produce. Certainly, it could be argued that this is

obvious - any regulations will therefore produce ‘illegality’, and it is much the work of

smugglers and traffickers and informal labour market demand, as it is the product of

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state regulations. The response to this should be clear. Without immigration controls,

there would be no need for smugglers and traffickers and informal labour markets in

certain cities and agricultural regions would shrivel under the absence of what Van Parijs

(1992) has called ‘citizenship exploitation’ (exploitation based on the distinction between

citizen and non-citizen). And it is for this reason that I turn to the concept of virtualism.

The three Vs

Virtualism

For the economic anthropologist Daniel Miller (1998), ‘Virtualism’ refers to a

‘new political economy’ in which the ‘real’ (economy) is constructed by, and made to fit

‘virtual’ or abstract (economic) models, rather than the other way around. That is,

economists are not modelling the real word - the ‘real economy’ is beginning to mirror

economists’ models because economic models feed into economic policy. What

relevance does Miller’s theory of virtualism have for the study of illegal immigration? In

the previous section, I noted the epiphenomenal nature of illegal immigration. That is, if

illegal immigration is produced by stricter regulations, then the state is not so much

controlling it, the popular press not so much reporting it, as they are both creating it. In other

words, illegal immigration is created through popular and governmental arguments such

as ‘we need to reduce the number of bogus asylum-seekers’ (i.e. so-called ‘economic

migrants’); ‘firm but fair’ immigration policies; the construction of ‘artificial (or indeed

virtual) borders’ where once commerce and people routinely crossed with ease;

(conventional) conceptions of how labour markets operate (e.g. linear push-pull theories

relating to the supply and demand for labour); and the economic evaluation of

immigration based on a cost versus benefit rationality (e.g. viewing illegal immigrants and

asylum-seekers as ‘scroungers’ burdening restructured and cash-poor welfare systems).

One of the many effects of these circulating discourses is that in some European

countries, migrants who may actually be entitled to asylum, are entering and staying

clandestinely because they believe Europe is indeed a Fortress – a Fortress constructed

on the various ‘models’ of the way in which European and third country societies ‘work’

or should work.

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Venue-shopping

Virginie Guiraudon (2000) has argued that a security agenda within the EU is

pursued by what she calls ‘venue-shopping’. In terms of our purposes here, she has

argued that security issues are becoming increasingly dominant as a specific form of

venue-shopping is taking place. That is, domestic actors involved in the management of

migration remove immigration from public debate and policy-making is shifted upwards

into inter-governmental co-operative bodies at the European level that are dominated by

the security agendas of interior ministers (see also Cholewinski, 2000; Lavenex, 2000).

(Very) remote control

Zolberg’s ‘remote control’ (or very remote control as I call it) refers to at-a-

distance control (rather than simply control at the borders of the advanced economies).

He has in mind for example, the Dublin Convention’s ‘first country’ and ‘third safe

country rules’ and the stationing of customs agents in Latin American or eastern

European transport hubs in order to prevent would-be illegal immigrants and asylum-

seekers from ever reaching the shores of northern countries. I maintain in this paper that

remote control has become increasingly important because of the apparent rise in

smuggling and trafficking. Since smuggling and trafficking networks frequently have their

origins in central Asia and Eastern Europe, this has made (very) remote control all the

more necessary for the securitarian-minded member governments and specific EU

institutions such as the Council and its satellite working groups. Yet, it is not simply EU

institutions that are interested in very remote control. Indeed, perhaps the most telling

example is the UK government’s now defeated (but hardly buried) proposal to move the

processing of asylum claims to third countries (e.g. the Guardian, 1 March 2003).

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Re-scaling decision-making: the communautarization of the control of illegal

immigration from the Treaty of Amsterdam to the Thessaloniki Council

Communautarization and intensive trans-governmentalism

For Geddes (2000), the Treaty of Amsterdam has led to the ‘communatarisation’

(and not the supra-nationalisation) of immigration policy. That is, it has brought the

regulation of immigration policy closer to the ‘community method of decision-making’.

At present, decision-making cannot be understood as truly supra-national, because as

numerous authors have stressed, decision-making remains in the realm of the inter-

governmental Council of Ministers with ‘unanimity’ the modus operandi at least until May

2004. Meanwhile the EP (European Parliament) is marginalised and the ECJ (European

Court of Justice) has only limited jurisdiction (see also Kostakopolou, 2000).5

Furthermore, the Ministers themselves (especially the interior ministers) are part

of what Helen Wallace calls ‘intensive trans-govermentalism’. ‘Intensive trans-

govermentalism’ refers to the activities of governmental actors below the levels of chiefs

of government such as ministerial officials, law enforcement agencies, and other

bureaucratic actors. These officials act with a certain degree of autonomy vis-à-vis their

chief executives and are free to develop their own policy agenda” (Lavenex, 2001, 854;

see also Wallace, 2000, 33-5). This sort of intensive transgovermentalism is represented

in part by the proliferation of inter-governmental cooperative groups such as the Ad Hoc

Immigration Group, the Schengen Group, and the JHA EU working groups. They

develop outside the Community framework. They are secretive and for the most part do

not have to answer to judicial control by for example, the EP or the ECJ. These have

proliferated over the last 10 years as national governments have either progressively lost

(or perceived to have lost) control over migration flows because of more liberal national-

level jurisprudence. That is, they seek compensation for this putative lack of control by

fortifying borders through (for example police) cooperation and thus repelling migrants

and would-be asylum-seekers even before they can reach the shores of member states.

Headed by an agenda of interior ministers, this sort of up-scaled cooperative securitarian

approach also provides leverage by providing international legitimacy to domestic

5 However, the Convention on a European Constitution has called for changes in decision-making, including the extension of qualified majority voting and co-decision to replace some policies, such as immigration policy which are currently subject to unanimity (Kostakopolou, 2000; CEC, 2003b).

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constituencies (Guiraudon and Lahav, 2000; Koslowski, 1998; Lavenex, 2001). No more

evident is this than in the Council’s SCIFA + (Strategic Committee on Immigration,

Frontiers and Asylum) which has replaced the Maastricht Treaty’s K4 Committee.

SCIFA + appears to have had much more success negotiating agreements with interior

ministers than with the Commission, and has arguably eclipsed COREPER (The

Committee of Permanent Representatives of the Member States) as the primary broker

between the Council and the Commission. But if communautarization is not quite supra-

national governance, then this has not precluded a range of proposals and directives,

significant measures to be adopted, and considerable de facto cooperation between

member states by European institutions prior to the May 2004 deadline. In fact, it is in

the realm of illegal immigration which the goals of Amsterdam have ‘progressed’ the

furthest (Guild, 2003).

After Amsterdam: the 2001 Action Plan, and its outcomes from Laeken to Thessaloniki 6

After Amsterdam, the Tampere summit in October 1999 (which aimed to carry

out and accelerate the implementation of the Amsterdam proposals) spoke of more

efficient management of migration controls and tackling immigration at its source. The

Council called for more cooperation between member states, and confirmed the

requirement that new member states accept the Schengen acquis as integrated within the

Treaty of Amsterdam. The European Council Meeting in Laeken in December 2001

called for an action plan on illegal immigration. There were 8 points to this plan as

outlined in the pre-Laeken document (CEC, 2001c): visa policy, information exchange

and analysis, pre-frontier measures, financial support of actions in third countries, border

management, improvement of co-operation and co-ordination at the operational level,

the advanced role of EUROPOL, aliens law and criminal law (including illegal

employment) and finally readmission and return policy. These action points were

absorbed into, and their importance confirmed by, subsequent Commission

communications. On February 28, 2002, the Council adopted the “Comprehensive plan

to combat illegal immigration and trafficking of human beings in the European Union”

(otherwise known as the ‘Santiago Action Plan’).7 The Santiago plan identified a similar

set of domains where action was deemed necessary either within one year (short-term

6 Measures relating to illegal immigration prior to Amsterdam are carefully documented in Cholewinski (2003) and it is not my intention to discuss these here. 7 OJ 2002 C 142/23.

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measures) or within three years (medium-term measures): visa policy, the exchange and

analysis of information, readmission and repatriation policies, pre-frontier measures,

measures relating to border management, EUROPOL and penalties.

In June 2003, just prior to the Thessaloniki Council, the Commission produced a

communication on a common policy on all aspects of illegal immigration (CEC, 2003a).

Here too, the themes were nearly identical to those of the plan set out at Laeken and

those of the Santiago Plan. The following discussion then, is organised around the

themes of the pre-Thessaloniki document (above), including visa policy, border control

policy, key flanking measures, operational co-operation and exchange of information;

partnership with third countries, return policy, and financial resources for burden

sharing. For the moment however, I will only be concerned to discuss the first 4 of these

7 areas of policy development. Two of the remaining three areas (return policy and

partnership with third countries) will be discussed under the rubric of ‘re-scaling control’

in the third part of this paper.8

Visa policy

Visa policy is a directly related flanking measure to free movement in terms of

external border control, according to Article 61 TEC (CEC, 2001c). However, it is aimed

at entry control, and clearly cannot address clandestine entrance or ‘overstaying’. In this

context, for the Commission,

“Illegal immigration represents one of the basic criteria for the determination of those third countries whose nationals are subject to the visa requirement, besides other criteria such as public policy and security, EU’s external relations, regional coherence and reciprocity…[..]…” (CEC, 2001c, p. 4). The above quotation is a reasonably clear demonstration of ‘virtualism’. In other words,

particular restrictive immigration policies are applied to specific countries on a case-by-

case-basis [often the result of risk assessments based on the profile of both the socio-

economic characteristics of their citizens - especially the stock of desirable labour market

skills - and whether there is likely to be a ‘mass (illegal) migration’ from these countries].

This restrictionism often lends to ‘overstaying’ or assisted illegal migration (as a market

for smuggling and trafficking is created, because how else are the ‘unwanted’ to by-pass

restrictions?). This in turn reinforces the list of countries whose nationals require visas

8 As burden-sharing falls within the realm of an emergent European asylum regime, I do not address this issue here.

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for European authorities, and eventually encourages further illegal immigration as most

will be unqualified to migrate legally.

If illegal immigration is one of the policy areas in which EU-wide cooperation

and legislation has ‘progressed’ the furthest, then within this policy domain, visa policy

may be exemplary. Indeed, Council regulation (EC) No. 453/2003/EC of 6 March 20039

listed “the third countries whose nationals must be in a possession of visas when

crossing the external borders and those whose nationals are exempt from that

requirement” (CEC, 2001c, 12). The Commission saw the adoption of this Regulation as

providing for further developments towards a harmonised visa policy and for preventing

unauthorised entry.10 Given that for the Commission, there are considerable forgery and

security issues associated with visa formats, the pre-Laeken document points to co-

operation in the field of security documents, such as the development of the

EU/Schengen visa sticker. In this sense, Council Regulation (EC) No. 1863/95 of 29

May 199511 stipulated a uniform format for visas and allowed the Commission to further

specify the details of this format. A Commission proposal of October 9, 2001 would link

the visa sticker to the identity of the migrant more closely, and integrate a high standard

photograph, for example. Finally, Tampere conclusions (Nr. 22) stressed that “a

common active policy on visas and false documents should be further developed,

including closer co-operation between EU consulates in third countries and, where

necessary, the establishment of common EU visa issuing offices” (cited in CEC, 2001c,

12). However, despite their importance for the Santiago Action Plan, the development of

common visa issuing offices has stalled for the moment in part because of a failed pilot

programme (CEC, 2003a).

There are also numerous discussions and debate around trans-state information

exchange in terms of issuing visas. This came as a direct response to the events of

September 11, as outlined in the conclusions of the extraordinary JHA Council held on

20 September 2001. The Commission proposed to assess the feasibility of a European

Visa Identification System in order to ensure proper admission for short-term stay and

return after the expiration of the visas. However, for the Commission, any proposals

would have to be evaluated in light of existing information services such as SIS (later SIS

II – see below). This came to fruition when, on June 13, 2002, the Council adopted a set

9 OJ 2003 L69/10. This amended Council Regulation (EC) No. 539/2001 of March 15 2001. 10 Indeed, Council regulation (EC) No. 2414/2001 of December 7 modified the previous regulation 11 OJ L 164, 14.07.1995.

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of guidelines for the development of the VIS (Visa Information System). According to

the Commission, it has been designed to dissuade ‘visa shopping’, improve visa

consultation and the delivery of the common visa policy, facilitate the application of the

Dublin II regulation and return procedures12, and enhance internal security and anti-

terrorist measures (CEC, 2003a; CEU, 2003). The VIS seeks to provide a common

technical platform with SIS II13, without delaying the formation of the latter. However,

while there is a precedence for funding and development for SIS II, the VIS is an entirely

new system, and it is not surprising that while the Commission is committed to both

projects, it is prioritising SIS II because it lies at the foundation of Schengen cooperation.

The basic elements of the VIS (biometric identifiers such as iris scanning, facial

recognition and fingerprints, financing, system architecture and so forth) are scheduled

to be outlined by December 2003 at the latest. It is intended that they will include a C-

VIS (Central Visa System) and a N-VIS (National Visa system). For both systems, it is

estimated that it will cost the EU 130 to 200 million Euros, but much of this will be

borne by national governments (CEC, 2003a).

Border control policy

If the ‘three Vs’ constitute one means of understanding the geopolitics of

immigration policy, then certainly the reinforcement of external borders is also about

‘compensatory measures’ for the liberalization of the EU’s internal borders (e.g.

Mitsilegas, 2002). Thus, it is not surprising that border policy, like visa policy, is also one

of the most highly developed policy domains in the EU. Article 7 and Article 47 of the

Schengen Convention implementing the Schengen Agreement called for closer

12 The Dublin II regulation (adopted by the Council of Ministers on 18 February 2003) replaces the original Dublin Convention (1990). Dublin II is a regulation which will assist in the determination of which member state is responsible for processing an asylum-seekers’ claim, as well as forcing the responsible state to accept the return of an asylum-seeker (within a limited and specified time period) who is residing illegally in another member state. It will be aided by the EURODAC (European Automated Fingerprint Recognition System) regulation, which will finger print all asylum-seekers 14 years and older, as well as all those who cross the EU’s external borders illegally. Member states would have the option of sending a record of these fingerprints to a central EURODAC database. The basic idea is to further dissuade ‘asylum-shopping’ and illegal immigration (see OJ L 50/1 2003). 13 The Council Meeting of 28 and 29 May 2001 established that SIS II (The 2nd generation of the Schengen Information System) must be developed by 2006. The Commission agreed to assume responsibility for funding this, although in cooperation with member states, the applicant countries, the Council, the European Parliament and the Joint Supervisory Authority (CEU, 2003; ‘Schengen Information System II’, www.europa.eu.int). Council Regulation 2424/2001/EC of 6 December 2001, announced the entry into force of SIS II (OJ L 328/4 2001).

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cooperation in the field of border controls. A May 2002 Commission Communication

(2000f) focused on integrated management of the external borders, and the Seville

European Council of June 2002 supported the findings of this Communication.

Consequently, the Commission has funded a range of pilot projects and joint operations.

The May 2002 Communication (above) identified five aspects of border management

with the view to constructing a European Corps of Border Guards (or ‘European Border

Guard’ as it appeared in previous documents).14 These five aspects included a common

corpus of legislation, a common co-ordination and operational co-operation mechanism,

a common integrated risk analysis (especially through upstream liaison with third

countries), staff trained in the European dimension15 and inter-operational equipment,

and burden-sharing between member states (EC, 2002f, 12). In particular, the

Communication called for the establishment of The Common Unit for External Borders

Practitioners which was established in 2002, following the Seville Council

recommendations. It meets within the Council under the umbrella of SCIFA + (CEU,

2003). The Commission Communication argued that the continuation of the Common

Unit should be reviewed and that more operational tasks could be removed from under

the aegis of SCIFA +, and transferred to a position within a ‘new permanent Community

structure’, subject to parameters of Article 62 of the TEC.

Finally, in my earlier discussion of ‘virtualism’, I suggested how the theorisation

and practice of border definition and management leads to ‘artificial (or indeed virtual)

borders’. In fact, the Commission is not unaware of the limitations of its own external

border management, and it has produced two proposals for a Council Regulation on the

“establishment of a regime of local border traffic at the external land borders of the

Member states” [COM (2003) 502 final, 14 August, 2003)]. The idea of this Regulation is,

ironically, to lubricate the movement of certain types of commercial and human traffic

that the securitisation of external borders has impeded.

Key-flanking measures

14 This would also include a planned police school (CEPOL). Note that the UK rejected the proposals for a construction of a European Corps of Border Guards (Migration News, January 2002). At present, liaison officers from one country are already being posted in others but they are not interfering in the sovereignty of states, they are merely advising and supporting the existing competencies of border guards. 15For example, carrying out border checks in accordance with uniform principles based on a common standard, although the Commission seeks to develop these further. For the Commission, this in itself should include a common curriculum and training framework.

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The key-flanking measures primarily involve the relationship between illegal

immigration and smuggling and trafficking, undeclared work, and carrier liability. Let me

begin with smuggling and trafficking.

First, in the thinking of European institutions smuggling and trafficking are not

interchangeable phenomena, the latter usually involving some sort of ‘exploitation’

related to work in the destination country (for further discussions, see Piotrowicz, 2002;

Salt, 2000). And while they are actually separate offences under law, they often overlap in

practice. Consequently, the Commission argues that the relationship between smuggling

and trafficking should be clearly specified, but the two should be part of a coherent EU

policy. Second, the key flanking measures of the pre-Thessaloniki document (especially

smuggling and trafficking) fell under the area of ‘Aliens Law and Criminal Law’ as set out

in previous Commission Communications. And it is Aliens Law and Criminal Law that is

viewed by the Commission as the ‘classical’ means of combating illegal immigration

(CEC, 2001c). Indeed, earlier, Tampere conclusions No. 23 called for severe sanctions

against serious crimes, which included illegal employment, smuggling, trafficking, and

carrier liability on illegal entry. With respect to police and judicial co-operation, the

Commission wishes to enhance the role of the European Judicial network (especially

Eurojust)16 as well as the adoption of the Convention on Mutual Legal Assistance of May

29, 200017 (in particular, the area of combating organised crime) in order to tackle

smuggling and trafficking. The pre-Laeken document called for the swift ratification of

the Convention and its protocols.

In terms of smuggling specifically, Article 27 of the Schengen Implementation

Agreement is clear on imposing penalties for smugglers. And in November 2002 a

Council Directive (2002/90/EC of 28 November) defined “the facilitation of

unauthorised entry, transit and residence”. This directive sought to establish “the precise

definition of the infringement in question and the cases of exemption…”18, and related

to this a ‘strengthening of the penal framework’ which was the subject of a Council

Framework Decision adopted on the same day.19 However, as Statewatch observes, the

Decision’s ‘overbroad definition’ is likely to threaten ‘support networks and established

migrant communities’ (p. 72).

16 EUROJUST became effective in January 2003, and is a unit of national prosecutors, magistrates or police officers of equivalent competence dealing with issues of security-related matters. 17 Including its subsequent protocols on improving mutual legal assistance in criminal matters. 18 OJ L 328, 05/12/2002, p. 0017-0018. 19 Council Framework Decision of 28 November 2002, OJ 2002 L 238/1.

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In terms of combating trafficking, on 21 September 2001, the Extraordinary JHA

Council meeting reached a political agreement on a Framework decision on combating

trafficking in human beings. It provides a common definition of trafficking which is

designed to facilitate law enforcement and judicial co-operation in criminal matters, and

it also sets out a common level of penalties – not less than 8 years if it is committed

under a particular set of circumstances. However, the Communication stated that

criminal punitive measures could not alone hinder smuggling and trafficking since there

are considerable financial gains to be made. Thus the confiscation and freezing of assets,

as well as forced reimbursement for the cost of repatriating illegal migrants and/or

rejected asylum-seekers should be pursued. Furthermore, the Commission adopted a

proposal on 11 February 2002 on a “short-term residence permit to be issued to victims

of action to facilitate illegal immigration or trafficking in human beings who agree to co-

operate with relevant authorities in order to gain information about traffickers” (COM,

2002, 71 final).20 Furthermore, the Council adopted a framework decision on 19 July

2002, on combating trafficking in human beings.21 In particular, it viewed “trafficking in

human beings as a serious crime which comprises violations of fundamental human

rights and human dignity and calls for a multidisciplinary approach tackling all links in

the trafficking chain, in countries of origin, transit, and destination” (CEU, 2003b, 3).

This led in September 2002, to the ‘Brussels Declaration on preventing and combating

trafficking in human beings – global challenges for the 21st century’. For the

Commission, the Brussels declaration stands out as a landmark in EU policy, since it

aimed to foster European and international cooperation, and the Commission claimed

that it is likely to guide future policy at the EU level (EC, 2003a).

For the European Commission, undeclared work appears to be on the increase.

It is seen as ‘undermining the financing and delivery of public services’ while it is also

viewed as a ‘pull factor’ for illegal immigration (EC, 1998; but see Samers, 2001, 2003).

With regard to illegal employment, a Council Recommendation of 27 September 1996

sought to establish measures for combating the illegal employment of TCNs. The

Communication of the Commission on undeclared work 1998 sought to build co-

operation and debate. And like more recent Commission documents, it argued that

20 However, as of June 2003, this was still awaiting discussion by the Council (EC, 2003a). In any case, Belgium, Italy, and the Netherlands, Spain and Germany already have such a programme, and France and Greece are considering them (EC, 2002b). For a fuller discussion of the limitations of such a European-wide proposal, see Piotrowicz (2002), and for its implications for human rights, see Cholewinski (2003). 21 OJ 2002 L 203/1.

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sanctions against illegal employment should be harmonised in order to eliminate

‘competitive advantages’, which is an essential principle of Community Law. This

includes minimal criminal penalties. In addition financial gains should be diminished. The

Commission is examining the tabling of a proposal for a Directive on the employment of

illegal residents from third countries that would focus on the specific requirements

needed to tackle this issue. With regard to the financial advantages which might accrue to

traffickers (the combination of assisted and clandestine entry tied to extremely low-paid

employment or even servitude), the Commission seeks more severe and systematic

financial penalties (such as the full seizure of any financial assets, and making the

employer pay for all the costs of repatriating a migrant which is now borne by social

welfare or other public means). Thus, the European Employment Guidelines of 2000

stressed that reducing undeclared work should be a priority, and echoing the above, the

Stockholm European Council in 2000 argued for the necessity of tackling the ‘informal

economy’ in general as part of the overall European Employment strategy in 2003. For

the European Commission, this ‘battle’ can only be won through both preventive actions

and sanctions (CEC, 2001c, 2003a).

In terms of carrier liabilities for example, the Council adopted a Directive in June

2001 (2001/51/EC of 28 June 2001)22 supplementing the provisions of Article 26 from

the 1985 Schengen accords, which contains three penalty options for carriers who violate

existing rules. However, the Commission admitted that the above Directive has not

achieved an effective harmonisation at the EU level in terms of ‘carrier sanctions’. The

Directive only covers passenger and not goods transport. Rail transport is only partially

covered, and there is considerable space for each member state to apply the directive

differentially. In addition, many of them are delayed in implementing the provisions of

this directive into national law. The Commission is calling for more harmonisation and

tri-lateral talks between member states, the transport industry and the Commission, with

the added recommendation that enhanced technical advice and support be provided to

commercial carriers. Nevertheless, in November 2001, member states, the transport

industry, European institutions, humanitarian organisations and related interested groups

held a ‘Round Table on Carriers Liability’ to explore possible European avenues. Over

the course of 2002, follow up ‘expert meetings’ were held, but they concluded there was

no need for further harmonisation, but that the Commission should hold regular

consultation meetings (CEC, 2003a). A very recent proposal has emerged from the

22 OJ 2001 L 187/45.

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Spanish government which would require carriers to provide a list of passengers coming

into the EU as well as a list of all third country nationals who do not return on the date

specified by their travel documents (Cholewinski, 2003).

.

Operational co-operation and exhange of information

The Commission communication of November 2001 and the Santiago Plan

repeatedly stressed the importance of the gathering and exchange of information,

intelligence and analysis. Given the incompatibility and uneven provision of data on legal

and illegal immigration, the Commission presented an action plan for improving

common statistics at the European level in 2001. CIREFI (which is a European wide

observatory for estimating illegal immigration across the EU) is central to this mission,

but the Commission has suggested that it employ new web technologies such as ICONet

(Information and Co-ordination Network). The Commission argues that ICONet would

be ideal in the realm of collection and dissemination of information in the context of

immigration liaison officers and return as well. The Commission is currently preparing a

document that would identify its legal basis. In any case, the work of CIREFI, including

the potential use of ICONet would have to fit within the framework of SIS II.

The November 2001 communication referred to the creation of an ILO

(immigration liaison officers) network. A number of institutions collaborated to create an

ILO network in the western Balkans. While member states recognise the importance and

effectiveness of ILO networks, they cannot reach agreement on the definition of ILO

networks and the precise tasks they should carry out. Certainly, another crucial actor here

is EUROPOL (established through Convention on a European Police Office in 1995,

and in effective practice since July 1999) which is concerned with preventing and

combating serious forms of international crime such as smuggling and trafficking. It is

now cooperating fully in the exchange of information and intelligence with INTERPOL

and third countries with respect to illegal immigration.

Re-scaling control: virtualism, very remote control (and venue shopping?) after

Laeken

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In the discussion below, I seek to demonstrate a re-scaling of the control of

illegal immigration. It reflects simultaneously a virtual political economy, very remote

control, and perhaps a new mode of venue shopping. I focus on the communatarised

post-Laeken programmes because incorporating issues of immigration and asylum within

the EU’s external policy, especially cooperation and development programmes is a rather

recent affair originating at Tampere, and accelerated by the Laeken, Seville and

Thessaloniki Summits.23 As the Commission states

“The Seville European Council left no doubt that combating illegal immigration requires a greater effort by the European Union and a targeted approach to the problem, with the use of all appropriate instruments in the context of the EU’s external relations, while pursuing the constant long-term goal to develop an integrated, comprehensive approach to tackle the root causes of illegal migration” (EC, 2003, p. 12; emphasis added). Furthermore, Commission proposals have rested on the following premise: “Bearing in mind that any action to counter irregular migratory flows should take place as close as possible to the irregular migrants concerned, the European Union (EU) is promoting actions in, and support actions of, countries of origin and transit” (cited in “Wide-ranging action plan adopted to combat illegal immigration at the EU level, in http://www.europa.eu.int).

Indeed, the last few European Council meetings have introduced and begun the

implementation of a range of programmes under the general rubric of the EU’s ‘external

policy’. The idea is that international coordination will be enhanced both at the

preventive level (e.g. exchanges of information) and the reactive level (e.g. joint

investigations against smuggling and repatriation of illegal immigrants). The Third

Country governments themselves appear to be willing (and even eager) to cooperate, in

part because they are beginning to voice concern that their own countries are becoming

destination points for ‘transit’ and illegal immigration.

In this respect, considerable financial assistance has been offered by the EU to

third countries for “reinforcing their external border and promoting institutional and

administrative capacity for managing migration” (EC, 2003, 12), and most of the

programmes have been implemented since 2002, or are scheduled to be implemented

before 2004 (EC, 2002d).24 A special budget line (B7 –667: “Cooperation with Third

23 In general, the use of foreign policies to tackle the ‘root causes’ of illegal immigration to the advanced economies is a new phenomenon (Weiner and Munz, 1997). 24 The Council identified nine countries that would require more intensified cooperative measures. These included Albania, China, the former Republic of Serbia and Montenegro, Morocco, Russia, Tunisia, Ukraine, Libya and Turkey, although it also argued that there were a

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Countries in the field of migration”) within the general EU budget was established for

the first time in 2001 to offer further financial assistance outside the more generic

development transfers (EC, 2003e, 2003f). In fact, at Thessaloniki, it was agreed that

E140 million would be spent on increased border checks and the creation of a database

of EU visas and E250 million for assistance to countries that agree to accept the return

of their nationals from EU countries (Migration News, September 2003). In light of this,

the Commission intends to submit a proposal to the Council that would create a “legal

basis establishing a multiannual cooperation programme with third countries in the field

of immigration”. This additional financing is designed to provide origin and transit

countries with the necessary means to sign future readmission agreements (EC, 2003a,

13). And yet, as Cholewinski (2003) points out, the Action plan from the 2001

Commission Communication on a ‘Common policy on Illegal Immigration’ (CEC,

2001c) insists that the EU should “use its political weight to encourage third countries

which show a certain reluctance to fulfil their readmission obligations” (cited in

Cholewinski, 2003, 14, emphasis by author). Furthermore, Cholewinski writes, “This

perniciously ambiguous and open-ended terminology reflects a ‘stick’ rather than a

‘carrot’ approach to cooperation with third countries…” (p. 14)25.

In any case, the development-migration programmes that have emerged include

TACIS, MEDA, EUROMED, CARDS, PHARE, ASEM, the INTERREG community

initiative, and the Cotonou Agreement among ACP countries. I briefly discuss these

programmes below. The TACIS programme (Technical Assistance to the

Commonwealth of Independent States – that is the former Soviet Union) focuses on

three key issues: the development of comprehensive border management, combating

drug trafficking, and the construction of anti-corruption measures in the cooperating

states, which the EU argues is likely to have an impact on illegal migration. Similarly,

there is The New Tacis Regional Programme (for Central Asia) which is to include co-

operation on migration and related issues, in particular improvement of border

management capacities; and construction of border crossings in the three border region

of the Ferghana Valley (eastern Uzbekistan). MEDA refers to a Justice and Home Affairs

whole slew of other origin and transit countries which demanded attention, particularly the accession countries and neighbouring Mediterranean countries (EC, 2003; EC, 2003d). 25 Indeed, Statewatch notes that adopted EU plans “included detailed statistics showing the size and age structure, life expectancy and infant mortality of the population, imports and exports to and from the EU and the rest of the world, GDP, development aid and existing trade cooperation and readmission agreements – all of which are to be used to cajole those countries into accepting EU readmission policies” (2003, 73). .

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Regional Programme which involves the Mediterranean region, and is aimed at building a

common and comprehensive policy on immigration (especially smuggling and

trafficking) in, from, and between that region, while at the same time pursuing the

development of joint police enquiries using the EUROMED network, at southern

Mediterraean ports. EUROMED is a network of data collection and research on

migratory phenomena, and once again is intended to focus on southern Mediterranean

ports in order to exchange information on suspected smuggling and trafficking networks,

especially from sub-Saharan Africa to North Africa. The CARDS regional programme

involves south-eastern Europe,26 and it requires the participation of the relevant

countries in the SAP – Stabilisation and Association Process. The aim is to foster regional

cooperation (as a complement to national CARDS programmes) in the realm of Justice

and Home Affairs. Part of the rationale for a regional response is that the problems

envisioned (such as illegal migration) are very much cross-border in nature. There will be

support for border control, institution building, emphasis on equipment and

infrastructure, technical assistance, and twinning type arrangements. In the Draft

Programme (CARDS regional programme), the financial proposal totalled 14 million

euros for the period December 2001-Dec. 2004, but the total amount available for

regional cooperation reached 45 million euros, of which 25 million is aimed at integrated

border management (CARDS, 2001). The PHARE programme which set an important

precedent for the CARDS and TACIS programme is now complete. For example, the

PHARE programme for 2001 and 2002 in Poland has supported the ‘militarisation’ of

Poland’s eastern border in time for full accession in 2007-8, and the number of border

guards is likely to reach approximately 10,000 from the current 5,300 (Statewatch, 2003).

The ASEM is a trans-Asian dialogue on migration underway, which has led to

important Ministerial meetings (e.g. the ASEM Ministerial Conference on Co-operation

for the management of migratory flows in April 2002). This resulted in a political

declaration on migratory flows (The ‘Lanzarote Declaration’). The Cotonou agreement

(which follows on from the Lomé IV agreement) and entered into force on 1 April 2003

contains provisions on co-operation and migration – in particular those related to the

prevention of, and ‘fight against’ illegal immigration (Article 13). Migration will be part of

a dialogue in the context of the ACP-EU partnership and the ACP-EC Council of

Ministers will in the future focus expressly on issues of illegal immigration (CEC, 2002d;

2003i; Development Strategies – IDC, 2003). Yet, the ACP countries protested that the 26 More specifically, Albania, Bosnia and Herzegovina, Croatia, Federal Republic of Yugoslavia

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stipulations in Lomé IV (and later the Contonou Agreement) which forced states to

readmit migrants, were not legal, but they had little choice but to sign the agreement

(Statewatch, 2003).

In short – the EU’s external policy is producing a new geography of remote

control, which extends beyond carrier sanctions and placing customs officials in third

country airports.

It would be a gross mistake at this stage not to discuss the case of certain Eastern

European countries. While the above programmes involve some Eastern European

countries, the immediate accession countries (especially Poland and the Czech Republic)

involve a different set of issues and priorities, especially the pressure felt from European

institutions to apply the Schengen acquis and to satisfy the new EU visa directives.27

Indeed, on April 14, 2003, the Council announced that the accession countries would be

given special attention (CEC, 2003a). In light of the accession countries’ (partial)

integration within the EU and their as yet, incomplete adoption of Shengen

requirements28, the accession countries and in particular Poland and the Czech Republic

have specific stipulations attached to their integration into the EU. That is, there is a

transition period of roughly 7 years in which citizens of these countries will not be

allowed to freely migrate into Western European member states. Yet what seems most

pertinent here is the way in which the application of the Schengen acquis in accession

states is the way in which such restrictionism leads to the construction of ‘virtual

borders’. In other words, tight borders and visa controls are wreaking havoc with existing

cross-border economic ties such as between Poland and the Ukraine. In one Polish

region for example, where apparently 30-40% of small and medium-sized firms survive

through commerce with the Ukraine, application of the Schengen acquis increases

transaction costs considerably. Consequently, both governments are seeking ways to

modify the Schengen requirements (Mitsilegas, 2002), and it is not surprising that the

European Commission has itself presented a proposal for a Council regulation on “the

establishment of a regime for local border traffic at the external land borders of the

Member states” (CEC, 2003g).

and Former Yugoslav Republic of Macedonia (FYROM). 27 The Polish government has had some reluctance to implement the EU’s visa policies, especially in relation to the Ukraine with which it has a unique relationship. Similarly, the Hungarian government does not wish to impose visa restrictions on Romanians, Ukrainians, and migrants from the former Yugoslav Republics, because of the large number of ethnic Hungarians living in these countries, thus contradicting the emerging EU visa regime (Mitsilegas, 2002). 28 This is somewhat of a moving target, as Mitsilegas (2002) points out so insightfully.

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A second aspect of this new geography of control concerns a community return

policy. A Council Directive (2001/40/EC) of 28 May 2001 set out the ‘mutual

recognition of decisions on the expulsion of third country nationals’.29 In this regard, the

Council believed that the “expulsion of third country nationals, cannot be sufficiently

achieved by the member states and can therefore, by reason of the effects of the

envisaged action, be better achieved by the Community”30. That is, the Directive allows

responsible authorities in one member state to enforce the expulsion decisions of

another member state.31 However, as of June 2003, the Commission (CEC, 2003a) had

indicated that no member state had noted how this Directive might be incorporated into

national law. In November 2002, the Council adopted a ‘Return Action Programme’

based on the Seville European Council and the Green Paper on a Community return

policy. As the Commission stated:

“all efforts to fight illegal immigration are questionable, if those who manage to overcome these measures succeed finally to maintain their illegal residence. The signal effect of a failed return policy on illegal residents cannot be underestimated” (CEC, 2003a, p. 8). The Commission argued further that “Only this [the Return Action Programme] will ensure that the message gets across that immigration must take place within a clear legal procedural framework and that illegal entry and residence will not lead to the desired stable form of residence” (Ibid).

In any case, the Commission, in its Communication (CEC, 2003a) has called for

action in five areas of return policy. First, the Commission seeks to ‘enhanc[e]

operational co-operation among member states’. In particular a proposal by the German

government has called for assistance with removals by air from the country of transit (in

case of non-direct return flights) that would lead to ‘positive’ externalities in the realm of

enforcement co-operation. Second, it aims to use the VIS to facilitate the provision of

‘travel documents for undocumented illegal residents’. In this sense, given the difficulties

which authorities face in literally placing migrants without documents (the

‘undocumented’), the Commission claims that improved information exchange, a better 29 OJ 2001 L 149/34. 30 OJ L 149 02/062001, para 5, p. 34. In February 2003, the Commission also submitted a proposal for a Council Decision setting the criteria and practical arrangements for the compensation of financial imbalances arising from Council Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third country nationals.

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EU-wide handbook, and biometric identifiers (which could be deployed to verify

previously scanned documents) would help to locate the nationality of an undocumented

migrant. Third, the Commission envisions the development of a ‘clear legal basis for the

continuation of the removal operation.’ The Commission believes that this ‘clear legal

basis’ is essential, especially where the use of coercive force is ‘unavoidable’, and it has

called for common standards and mutual recognition of all decisions on return. As a

consequence, the Commission intends to propose a ‘Council directive on minimum

standards for return procedures and mutual recognition of return decisions’. Such a

proposal is designed to work with, and build upon the existing Directive on ‘mutual

recognition of decisions on the expulsion of third country nationals’ (see above). Yet, as

of June 2003, no member state had produced any documentation on how this Directive

might be absorbed into national law. Finally, the Commission wishes to develop

integrated country-specific return programmes, calling especially for improved co-

ordination between origin and destination states, ‘reasonable [financial] assistance’ to

ensure ‘capacity building’ in the country of origin. In this context, the Commission (after

the prompting the of the Seville European Council) adopted the first pilot programme in

Afghanistan in November 2002 (CEC, 2003a).

Theoretically, this re-scaling of control to third countries demonstrates a number

of dimensions of the three Vs. First, the reinforcement of external borders, especially

those between the accession countries and states further east, disrupt existing economic,

social, and political ties between these countries. Second, notions (or ‘models’?) of how

smuggling and trafficking work between distant countries and the European Union,

aligned with a ‘safe inside’ and a ‘dangerous outside’ (Mitsilegas, 2002) serve to reinforce

not just external borders, but very distant borders. This is quite simply what I am

implying by very remote control. Yet, the re-scaling of control to third countries may

represent a new mode of venue-shopping as well. It is possible that this very remote

control is in turn shifting the less palatable (and less easily legitimated) dimensions of

border and visa control onto the candidate countries and far-flung third states where

legitimacy may be less of an issue.

Discussion and conclusions

31 Although, as Cholewinski (2003) points out, the criteria are rather general so that there is considerable flexibility in the system, which in turn may have a discriminatory effect on the migrants involved.

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This paper responds to the dearth of studies that discuss actual policy

developments in the EU with regard to ‘illegal’ immigration. In this sense, I sought to

outline two different, but related developments. The first is the gradual

communatarisation of policies relating to illegal immigration. That is, I sought to

demonstrate a re-scaling of decision-making with respect to the creation of (illegal)

immigration since Amsterdam, and to document the substantive nature of the policies

that have accompanied this communatarisation. What is clear, as Guild (2003) points out,

is that the Council of Ministers has had far more ‘success’ in reaching agreements on

illegal immigration, than in other areas of immigration. As a result, there seems to be a

deepening and widening of control since the Treaty of Amsterdam, as so many observers

of European immigration policy have described and envisioned.

Second, I argued that there has been a re-scaling of control to third countries, a

spatial extension of control far from the EU’s existing external borders. This is not

simply a case of placing police and customs officials in third country airports – as

Zolberg so cogently points out, but rather the gradual implementation of a system of

migration management aligned with development assistance in third countries. I

suggested further that Guiraudon’s notion of ‘venue-shopping’ in terms of migration

policy can be expanded from her original meaning (that is an up-scaling of control from

member states to the security-obsessed Council and its satellite working groups) to the

‘shipping out’ of the control agenda to third countries. I conjectured that it might be far

easier to construct a security agenda abroad far from the watchful eye of Brussels-based

NGOs and human rights campaigners, than it is to legitimate it in the EU and its

member states. (I am careful though not to exaggerate this claim because, with the

exception of critical academics and certain NGOs, there does not seem to be strong

opposition from domestic constituencies to ‘securitising’ member state borders).

Nevertheless, the kernel of this paper is my insistence on the usefulness of Daniel

Miller’s concept of ‘virtualism’ for moving beyond a now growing (and I would maintain

necessary) literature on the discursive construction of immigration as a threat. That is,

while Cholewinski claims that an appropriate metaphor for EU immigration policy is

“that of an ailing vessel in which sailors work frantically to plug the leak” (2003, 12),

virtualism argues that inter alia notions of immigration as potentially dangerous feed into

policy and practice, which in turn actually creates illegal immigration – not simply the

other way around. Like the economist’s model that is argued by Miller to dictate human

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behaviour, it is our responsibility as social scientists and legal scholars to create an

alternative ‘model’ of a less repressive world.

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